Heinzer V Whitman

Case Number: 23STCV01948 Hearing Date: July 15, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPARTMENT 32 HEARING DATE July 15, 2024 CASE NUMBER 23STCV01948 MOTIONS Motion to Appoint a Successor in Interest MOVING PARTIES Plaintiff Chinenye Prince Ugorji OPPOSING PARTY Defendants Housing Partnership Network, Inc. and 6218 Compton LLC MOTION On January 30, 2023, Plaintiff Chinenye Prince Ugorji (Plaintiff) filed a complaint against Defendants Vanessa Boyle, 6218 Compton LLC, and Does 1 to 50 for injuries related to a dog bite. Plaintiff passed away on October 13, 2023. Plaintiff now moves for an order pursuant to Code of Civil Procedure Section 377.31, appointing Dorothy Ugorji, Plaintiffs sister, as successor in interest to the deceased Plaintiff. Defendants Housing Partnership Network, Inc. and 6218 Compton LLC (Defendants) oppose. ANALYSIS California Code of Civil Procedure section 377.31 provides that the decedents personal representative or, if none, the decedents successor in interest may continue a decedents pending action. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) A successor in interest is the beneficiary of the decedents estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of the cause of action. (Code Civ. Proc., § 377.11.) Section 377.33 provides that the court in which an action is continued may make any order concerning parties that is appropriate to ensure proper administration of justice, including the appointment of the decedents successor in interest as a special administrator or guardian ad litem. Section 377.32 provides that a person who seeks to commence such an action as the decedents successor in interest must file an affidavit or declaration providing certain information, including the decedents name, date and place of decedents death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedents claim. ( Id ., § 377.32(a).) A certified copy of the decedents death certificate must also be attached to the affidavit or declaration. ( Id ., § 377.32(c).) Plaintiff passed away on October 13, 2023 . (Dorothy Ugorji Decl. ¶ 3.) Dorothy Ugorji declares that Plaintiff was not married and was survived by only one son, Miracle Chukwunyere Ugorji, who resides in Zambia. ( Id. ¶ 4.) Plaintiff also provides a declaration by Miracle Chukwunyere Ugorji, declaring under penalty of perjury that he authorizes his aunt, Dorothy Ugorji, to be substituted as successor in interest. (Miracle Decl. ¶ 7.) Defendants argue in opposition that the request is time barred because this motion was brought over six months after Plaintiffs death. (Code Civ. Proc. § 366.1.) However, the statutes that Defendants cite pertain to scenarios where the Plaintiff dies before filing the action. Here, Defendants do not dispute that the dog bite in this case took place on February 15, 2021 and Plaintiff filed his action on January 30, 2023, while he was still alive. Therefore, the six-month statute of limitations does not apply. Additionally, Defendants argue that Dorothy Ugorji cannot be appointed successor in interest because she is not a surviving spouse or surviving child. Dorothy Ugorji does not sufficiently respond to this argument. Moreover, as Defendants observe, no certified copy of Plaintiffs death certificate has been attached to the declarations in the motion, nor specific facts in either declaration. (See Code Civ. Proc. § 377.32.) Therefore, the motion to appoint a successor in interest is denied. CONCLUSION AND ORDER Therefore, the Court DENIES the motion to appoint successor in interest without prejudice. Moving Party shall give notice of the Courts orders, and file a proof of service of such.

Case Number: 21STCV07734 Hearing Date: July 17, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPARTMENT 32 HEARING DATE July 17, 2024 CASE NUMBER 21STCV07734 MOTIONS Motion to Substitute MOVING PARTIES Plaintiff Maria Cabriales OPPOSING PARTY None MOTIONS Plaintiff Maria Cabriales (Plaintiff) moves for an order pursuant to Code of Civil Procedure Section 377.31, substituting Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales, Plaintiffs only children, in their capacity as successors in interest to the deceased Plaintiff, under Code of Civil Procedure Section 377.11. No opposition has been filed. ANALYSIS California Code of Civil Procedure section 377.31 provides that the decedents personal representative or, if none, the decedents successor in interest may continue a decedents pending action. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) A successor in interest is the beneficiary of the decedents estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of the cause of action. (Code Civ. Proc., § 377.11.) Section 377.33 provides that the court in which an action is continued may make any order concerning parties that is appropriate to ensure proper administration of justice, including the appointment of the decedents successor in interest as a special administrator or guardian ad litem. Section 377.32 provides that a person who seeks to commence such an action as the decedents successor in interest must file an affidavit or declaration providing certain information, including the decedents name, date and place of decedents death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedents claim. ( Id ., § 377.32(a).) A certified copy of the decedents death certificate must also be attached to the affidavit or declaration. ( Id ., § 377.32(c).) Here, Plaintiff filed her complaint on February 26, 2021. Plaintiff passed away on March 14, 2022. A certified copy of Plaintiffs death certificate has been attached. (Exh. 1.) The certificate shows that Plaintiff was widowed at the time of death. The Court finds that Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales have filed declarations, under penalty of perjury, that they are Plaintiffs only children and successor in interest to Plaintiffs interest in this action. Therefore, the motion to substitute is granted. CONCLUSION AND ORDER Therefore, the Court grants the motion to substitute Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales as successors in interest to Maria Cabriales, deceased. Moving Party shall give notice of the Courts orders, and file a proof of service of such.

RG21104054: Phillips VS Berkeley Unified School District 07/18/2024 Hearing on Motion for Judgment on the Pleadings filed by Berkeley Unified School District (Defendant) in Department 24 Tentative Ruling - 07/11/2024 Rebekah Evenson The Hearing on Motion for Judgment on the Pleadings filed by Berkeley Unified School District (Defendant) scheduled for 07/18/2024 is continued to 09/05/2024 at 09:00 AM in Department 24 at Rene C. Davidson Courthouse . Defendant Berkeley Unified School District's Motion for Judgment on the Pleadings is CONTINUED to September 5, 2024 at 9:00 a.m. in Department 24, to be heard at the same time as Defendant's Motion to Stay and Sever. By no later than July 22, the parties shall deliver courtesy copies of their respective moving, opposition, and reply papers directly to Department 24, as required by Alameda County Superior Court Local Rules, Rule 3.30(c).

Case Number: 23AHCV01203 Hearing Date: July 17, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: July 17, 2024 TRIAL DATE: No date set. CASE: Katherine Perez v. Octavio Lara, et al. CASE NO.: 23AHCV01203 MOTION FOR TERMINATING SANCTIONS MOVING PARTY : Defendant Octavio Lara RESPONDING PARTY : Plaintiff Katherine Perez SERVICE: OK (overnight mail, 5/24/24) OPPOSITION: N/A REPLY: N/A RELIEF REQUESTED Defendant moves for an order dismissing Plaintiffs complaint based on alleged discovery misconduct. BACKGROUND Plaintiff Katherine Perez sued defendants Octavio Lara, fictitiously-named John Doe, and Does 1 to 50 on May 26, 2023, for negligence and related claims arising from a car accident that occurred on June 3, 2021 on Interstate 210. On December 28, 2023, Lara filed his answer. On January 8 and 10, 2024, Lara moved for an order compelling Plaintiff to produce further responses to several sets of discovery; he subsequently removed the motions from calendar. On March 21, 2024, the Court granted Plaintiffs counsels motion to be relieved. On April 18, 2024, the Court granted Laras motion to compel Plaintiff to appear for deposition and produce documents. The Court also imposed monetary sanctions on Plaintiff. On May 24, 2024, Lara filed the instant motion for terminating sanctions, contending that Plaintiff has not complied with the Courts April 18, 2024, and has not indicated she has any intent to do so. Plaintiff filed no opposition, and Lara no reply. A final status conference is set for August 8, 2024, and jury trial on August 20, 2024. TENTATIVE RULING The motion is DENIED. LEGAL STANDARD The Civil Discovery Act requires the court to impose monetary sanctions on a party who unsuccessfully opposes a motion to compel initial or further discovery responses. (See Code Civ. Proc., §§ 2030.290(c), 2030.300(d), 2031.300(c), 2031.310(h), 2033.280(c), 2033.290(d).) If a party then fails to obey an order compelling initial or further response, the Act permits the court at its discretion to impose escalating sanctions, including issue, evidence, or terminating sanctions. (See id. , §§ 2030.300(e), 2031.310(i).) DISCUSSION On April 18, 2024, the Court ordered Plaintiff to appear for deposition and produce documents on May 21, 2024, and to pay $450.00 in monetary sanctions within sixty (60) days. (See 04-18-2024 Minute Order.) Laras counsels uncontradicted declaration establishes Plaintiff did not comply with any part of this order. (McNulty Decl., ¶¶ 5-6.) The Court has the discretion to impose escalating sanctions. However, a terminating sanction remains slightly premature. In imposing discovery sanctions, [t]he trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery[.] ( Id., 992.) Sanctions should be tailored to the harm created by the withheld discovery and should not be used as punishment. ( Ibid. ) The court should also consider whether the discovery misconduct was willful and whether the requesting party was prejudiced by the others failure to comply. ( Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37.) Case law suggests the court should take an incremental approach to sanctions, holding that terminating sanctions should be used sparingly and as a last resort, ( Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191); that terminating sanctions are the ultimate sanction and should not be automatically imposed for every such disobedience of a discovery order ( Karz v. Karl (1982) 137 Cal.App.3d 637, 649); and that less severe alternatives should be attempted unless there is reason to believe they would be ineffective. ( Lopez v. Watchtower Bible & Tract Society of New York, Inc . (2016) 246 Cal.App.4th 566, 604.) Here, the facts do not sufficiently establish a willful failure to comply with the Courts order, nor do they establish that lesser sanctions cannot induce Plaintiffs compliance. The Court might have imposed lesser sanctions, but Lara did not request any in the alternative. The Court recognizes that Defendant will suffer prejudice if trial proceeds as scheduled. The Court therefore orders a short continuance and reserves a hearing date for a renewed sanctions motion. The Court will consider terminating sanctions at that time if Plaintiff still has not complied with the Courts order. Whether or not Plaintiff complies, the Court will consider lesser sanctions as appropriate to remediate any prejudice caused by Plaintiffs misconduct. CONCLUSION The Court denies the motion without prejudice. The Court advances to this date the final status conference and jury trial set for August 8 and August 20, 2024, respectively, and continues them to October 3 and October 15, 2024. The Court reserves a hearing date for Defendants renewed sanctions motion on September 4, 2024, at which the Court will reconsider terminating or lesser sanctions depending Plaintiffs compliance with the Courts April 18, 2024 order. Defendant is ordered to give notice by overnight mail and file proof of such with the Court. Dated: July 17, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org

Case Number: 22STCV39573 Hearing Date: July 16, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPT : 32 HEARING DATE : July 16, 2024 CASE NUMBER : 22STCV39573 MOTIONS : Motion to be Relieved as Counsel MOVING PARTY: Plaintiff Ryan Caldwells Counsel OPPOSING PARTY: None BACKGROUND Plaintiff Ryan Caldwells (Plaintiff) counsel of record, Khashayar Eshraghi (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. ( Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. ( Vann v. Shilleh , supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client ( Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh , supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) Counsel states the instant motion is filed for the following reason: This motion is based upon the grounds that there has been an irremediable breakdown in the attorney-client relationship that stands in the way of effective representation. (MC-052.) Counsel has provided information for all future proceedings in this case. Additionally, Counsel has been unable to confirm Plaintiffs address despite mailing the motion papers to Plaintiffs last known address, return receipt requested, calling Plaintiffs last known telephone number or numbers, attempting to contact Plaintiffs emergency contact, conducting a TLO search, and hiring a private investigator. However, the declaration in support states that Plaintiff was served by mail. (MC-052, item 3a(2).) This conflicts with the proof of service filed on July 8, 2024, showing that Plaintiff was served personally. Counsel provides no proof of service by mail. Additionally, the personal proof of service states that Plaintiff was served on July 1, 202410 court days before this hearing. Code of Civil Procedure section 1005 requires written notice of a motion including the date, time and location of the hearing on a motion. A moving partys failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions notice and an opportunity to be heard.¿ ( Logan v. Zimmerman Brush Co . (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Under Code of Civil Procedure section 1005(b), moving papers must be served and filed at least 16 court days before the hearing. Therefore, because Counsel did not provide the minimum notice period, the motion to be relieved is denied on procedural grounds. Additionally, as stated in the previous minute order, the proposed order does not contain Plaintiffs full zip code. (See Min. Order, 5/29/24.) Counsel must correct the zip code in a subsequent motion. Also, the service indicated in MC-052, item 3 must accurately reflect the type of service in the proof of service. Accordingly, the Court DENIES the motion to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.

Matter on the Law & Motion Calendar for Thursday, July 18, 2024, Line 3. DEFENDANT UNIVERSITY OF SAN FRANCISCO's Motion For Terminating Sanction And For Monetary Sanction (Code Civ. Proc. 128.7). Denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)

Case Number: 24NWCV00022 Hearing Date: July 17, 2024 Dept: C ZHOIE PEREZ v. SANDRA NGAYAN, et al. CASE NO .: 24NWCV00022 HEARING : 7/17/24 @ 9:30 A.M. #6 TENTATIVE RULING Defendants Sandra Ngayan and Francisco Alejandro Ngayans demurrer to Plaintiffs first amended complaint is CONTINUED to July 23, 2024 at 9:30 A.M. in Dept. SE-C. Moving Party to give NOTICE. The motion is unopposed as of July 15, 2024. This is a status hearing. At the June 12, 2024 hearing, the Court learned that Plaintiff was incarcerated. According to Court records, it appears Plaintiff is held without bail in People v. Zhoie Perez , Case No. PA098371-01. Her Probation and Sentencing Hearing on June 26, 2024 at 8:30 a.m. in San Fernando Courthouse, Dept. 1 was continued October 9, 2024. Plaintiff remains in custody for the criminal case. The Court has been in contact with Rosemary Chavez, new counsel for Plaintiff in the criminal matter, and has invited her to make a limited appearance in this case and to update the Court on the criminal matter.

Case Number: 24NWCV00056 Hearing Date: July 18, 2024 Dept: C WALLACE v. DOE CASE NO.: 24NWCV00056 HEARING: 07/18/24 #9 I. Jennifer P. Burkes, Esq. and the Wilshire Law Firms unopposed motion to withdraw as counsel of record for Plaintiff RAUL DE ANTUNANO is GRANTED . II. Jennifer P. Burkes, Esq. and the Wilshire Law Firms unopposed motion to withdraw as counsel of record for Plaintiff SARA JOSEY WALLACE is GRANTED . Moving Party to give Notice. No Opposition filed as of July 15, 2024. The Court finds that Counsel has met the procedural requirements, including proper notice to the client at the last known residence or business address of the client. C.R.C. 3.1362. Here, Counsels declaration indicates that there has been a breakdown of the attorney-client relationship. Where the issue (or conflict) is between the lawyer and client(s), without implicating other parties, the court can rely on counsels sworn declaration absent any reason to doubt the representations. There is an undisputed breakdown in attorney-client communications. It does not appear that Attorney Burkes continued representation would serve the interests of justice. The motions to withdraw are GRANTED.